Delhi District Court
State vs Amit Kumar on 9 April, 2024
IN THE COURT OF Ms. NEHA GUPTA SINGH,
CHIEF METROPOLITAN MAGISTRATE,
NORTH DISTRICT, ROHINI, DELHI
STATE VS. Amit & Ors.
FIR No : 136/2012
P. S. : Alipur
U/s : 33 Delhi Excise Act
JUDGMENT
Registration No. of the case : 5284572/2016 Date of its institution : 19.07.2014 Name of the complainant : H.Ct. Joginder Date of Commission of offence : 29.04.2012 Name of the accused : 1) Amit S/o Shradhanand R/o villahe Rohna, PS Kharkhoda, Dist. Sonipat (Haryana)
2) Pankaj Kumar S/o Suresh Chand R/o House no. 666, Gali no. 4 A, Swatantar Nagar, Narela, Delhi.
3) Joginder S/o Not known R/o D-14/130, Sector 7, Rohini, Delhi.
(Declared PO vide order dt. 04.07.2018 by ld.
Predecessor of this court.)
Offence complained of : U/s 33 (1) A & F Delhi
Excise Act
Plea of accused : pleaded not guilty
Case reserved for orders : 05.04.2024
Date of judgment : 09.04.2024
Final Order : Accused are acquitted for
offence U/s 33 Delhi Excise
Act
CC No. 5284572/16 State Vs. Amit & ors . FIR No. 136/2012 PS Alipur 1 of 10 BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. The prosecution story in brief is that on 29.04.2012 at about 5.30 a.m. at Old GTK Road, Ganda Nala crossing, village Budhpur, Delhi within the jurisdiction of PS Alipur both the accused persons namely Amit and Pankaj were found carrying 18 carton boxes kept in car bearing no. DL-
4CP-7404 out of which 10 of the said carton boxes were found containing illicit liquor i.e. quarter bottles of brand Murthal No. 1 and 8 carton boxes were found containing quarter bottles of Besto Whisky for sale in Arunachal Pradesh only as mentioned in seizure memo mark A without any permit or licence.
2. Investigation was completed and charge sheet was filed under section 33 Delhi Excise Act. Cognizance was taken and accused were summoned.
3. Copy of charge sheet and documents were supplied to the accused in compliance of section 207 Cr.P.C.
4. Arguments on charge were heard and charge against accused persons were framed under section 33 Delhi Excise Act. Accused persons pleaded not guilty and claimed trial.
5. It is pertinent to mention here that accused Joginder Gupta was declared PO vide order dt. 04.07.2018 by the ld. Predecessor of this court .
6. In order to bring home the guilt of the accused prosecution examined following witnesses.
7. PW 1 ASI Jugander Singh deposed that on 28.04.2012, he was on patrolling duty on the motorcycle bearing No.DL-1SN-4106 from 8.00 p.m. (28.04.2012) to 8.00 a.m.(29.04.2012) along with Ct. Nitish (DHJ). During CC No. 5284572/16 State Vs. Amit & ors . FIR No. 136/2012 PS Alipur 2 of 10 patrolling on 29.04.2012 at about 5.20 a.m., they reached at Buddpur Ganda Nala crossing, GTK road and saw one black colour Santro car was coming from the side of village Buddpur on the patri of Nala. Upon suspicion, he signaled to stop the car but the driver of the said Santro car tried to turn it back. He further deposed that with the help of Ct. Nitish, he successfully got stopped the said Santro car which was having its number as DL-4CP-7404 and upon inquiry, its driver disclosed his identity as Amit. One more boy, namely, Pankaj was also sitting in the Santro car besides the seat of the driver. He further deposed that gatta cartons were seen on the rear seat of the car but both the accused namely Amit and Pankaj failed to give any satisfactory reply regarding the presence of cartons and on checking those cartons were found ten in number and found containing illicit liquor of Murthal No.1 country made liquor. He immediately telephonically informed the DO at PS. After some time, HC Jagpal along with Ct. Jai Kumar reached at the spot. He handed over the custody of both the accused to the IO HC Jagpal. He also handed over the custody of the Santro car along with ten recovered cartons of illicit liquor. He gave statement Ex.P₩1/A to the IO. IO requested few passersby to join the investigation but none agreed to join and left the spot without disclosing their identities. He further deposed that thereafter, IO HC Jagpal Singh opened and checked the cartons and of the ten cartons were found 48 quarter bottles of Murthal No.1 in each of the carton. The diggy of the car was also searched and it was also found containing eight cartons. Each of the eight cartons were also checked by the IO and each carton was found containing 48 quarter bottles of CC No. 5284572/16 State Vs. Amit & ors . FIR No. 136/2012 PS Alipur 3 of 10 Besto Whisky. IO took out one quarter bottle from each of the 18 cartons as samples and remaining quarter bottles were again put in the respective cartons. 1O got brought the kattas through constable and the recovered cartons were put in separate kattas in a manner that two cartons were put in one katta. All the nine kattas were separately sealed after putting white cloth pullanda over their opening and sealed with the seal of VKS. He further deposed that thereafte IO also filled form M-29 at the spot. Seal after use was handed over to Ct. Jai Kumar. Thereafter, IO prepared rukka and sent Ct. Jai Kumar for registration of FIR with the rukka. Accordingly, Ct. Jai Kumar went to PS and got the FIR registered. After some time, Ct. Jai Kumar returned to spot and handed over copy of FIR and original tehrir the IO HC Jagpal. He futher deposed that thereafter IO had taken into possession the sealed kattas containing recovered illicit liquor vide seizure memo Ex.PW1/B . IO also seized the above said Santro car vide seizure memo Ex.PW- 1/C. IO prepared the site plan at his instance which is Ex. PWI/D. Thereafter, both the accused. namely, Amit and Pankaj were arrested and personally searched by the 1O vide memos Ex.PW1/E to Ex.PW1/H respectively. He further deposed that thereafter his supplementary statement was also recorded by the IO. The case property is Ex. P-1, order of Dy. Commissioner is Ex. Ex P-2, copy of joint report is Ex. P-3, photographs of case property is Ex. P-4 and sample of case property is Ex. P-5 & P-6.
8. PW-2 ASI Balvir deposed that on 29.04.2012, 7:35 am, Ct. Jai Kumar brought one rukka sent by HC Jagpal Singh and on the basis of said rukka, he registered FIR No. 136/12, PS Alipur which is Ex. PW2/A. At that time, CC No. 5284572/16 State Vs. Amit & ors . FIR No. 136/2012 PS Alipur 4 of 10 computer system was working properly and the FIR was properly saved in the server. No tampering was made with computerized FIR. He also made endorsement on rukka which is Ex. PW 2/B. After registration of FIR, he handed over the rukka and copy of FIR to Ct. Jai Kumar to give the same to HC Jagpal Singh.
9. PW-3 HC Ram Niwas deposed that on 29.04.2012 he received an information regarding apprehension of a car with illicit liquor and he reduced the same in writing vide DD No. 09 A dt. 29.04.2012 which is Ex. PW-3/A. .
10.PW-4 SI Jagpal deposed that on 29.04.2012, at about 5:40 am he received DD NO. 9A regarding apprehension of a car alongwith illicit liquor. On receipt of said DD he alongwith Ct. Jai Kumar went to spot where HC. Jugender Singh met me and handed over the custody of both the accused namely Amit and Pankaj to him. He further deposed that thereafter he handed over the custody of the Santro car along with ten recovered cartons of illicit liquor to him. He requested few passersby to join the investigation but none agreed. He further deposed that thereafter, he opened and checked the cartons and each of the ten cartons were found 48 quarter bottles of Murthal No. 1 in each of the carton. The diggy of the car was also scratched and it was also found containing eight cartons. Each of the eight cartons were also checked by me and each carton was found containing 48 quarter bottles of Besto Whisky. He further deposed that he took out one quarter bottle from each of the 18 cartons as samples and remaining quarter bottles were again put in the respective cartons. HC Jugender got brought the kattas through constable and the recovered cartons were put in separate CC No. 5284572/16 State Vs. Amit & ors . FIR No. 136/2012 PS Alipur 5 of 10 kattas in a manner that two cartons were put in one katta. All the nine kattas were separately sealed after putting white cloth pullanda over their opening and scaled with the seal of VKS. He also filled form M-29 at the spot. Seal after use was handed over to Ct. Jai Kumar. He had taken into possession the sealed kattas containing recovered illicit liquor. He further deposed that thereafter, he prepared rukka Ex. 4A and sent Ct. Jai Kumar for registration of the rukka. Accordingly, Ct. Jai Kumar went to the PS and got the FIR registered. After some time, Ct. Jai Kumar returned to the spot and handed over copy of Fir and original tehrir to him. He prepared the Site plan at instance of HC Jugender. He further deposed that thereafter, both the accused, namely, Amit and Pankaj were arrested and personally searched by him. He recorded supplementary statement of HC Jugender. Accused persons and case property were taken to PS. He further deposed that thereafter he had sent the sample to Excise lab and obtained the result of the same. He prepared the charge shect and file the same before the court.
11.Thereafter, prosecution evidence was closed by the order of the court. Separate statements of accused Amit and Pankar were recorded under Section 313 Cr.P.C and all incriminating evidences were put to them, to which they stated that they have been falsely implicated in the present matter. They did not wish to lead defence evidence.
12.I have heard the arguments addressed by the Learned APP for state and the Ld. counsel for accused persons and carefully perused the record.
13.It is argued by the Ld. APP for the state that state has proved its case beyond reasonable doubt and that accused CC No. 5284572/16 State Vs. Amit & ors . FIR No. 136/2012 PS Alipur 6 of 10 persons were found in possession of illicit alcohol without permit. It is further stated that there are ocular and documentary evidence on record to bring home the guilt of the accused.
14.Per contra it is argued by the Ld. Counsel for the accused that non-joinder of public witness despite availability cast shadow of doubt on prosecution story. Moreover, alcohol was not recovered from the possession of accused they are falsely implicated in present case. There are no independent evidence against them.
15.It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defense of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
16.In present case prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. Incident happened at 5.30 am at thickly populated area and it is admitted fact that public persons were available at the spot. It was held in Pradeep Narayana V. State of Maharashtra AIR 1995 SC 1930, that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was CC No. 5284572/16 State Vs. Amit & ors . FIR No. 136/2012 PS Alipur 7 of 10 held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
17.In present case IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. There is a possibility that it was a chance recovery. However, at the time and place from where the accused was apprehended and when the formalities were being completed, public persons were admittedly present. Even then, the IO failed to join any public witness. All the witnesses examined are police witnesses. This casts a shadow of doubt on prosecution story.
18.In present case the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of CC No. 5284572/16 State Vs. Amit & ors . FIR No. 136/2012 PS Alipur 8 of 10 seal, contraband and the samples being tampered with cannot be ruled out".
19. In present case recovery memo and other documents were prepared before the registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, an inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused. In such circumstances fairness of investigation is doubted. Reliance can be placed on the judgment of Giri Raj V/s State 83 (2000) DLT 201, wherein it was held that "5. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW 2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
20.In light of above discussion it cannot be said that state has proved its case beyond reasonable doubt. In the absence of CC No. 5284572/16 State Vs. Amit & ors . FIR No. 136/2012 PS Alipur 9 of 10 any cogent evidence accused Amit and Pankaj are acquitted for offence under section 33 Delhi Excise Act. Case property be confiscated to the state and the same be destroyed.
Announced in the open court On this 9th April, 2024 Neha Digitally signed by Neha Gupta Singh Gupta Date:
2024.04.09 Singh 16:10:48 +0530 (NEHA GUPTA SINGH) Chief Metropolitan Magistrate, North District Rohini Delhi CC No. 5284572/16 State Vs. Amit & ors . FIR No. 136/2012 PS Alipur 10 of 10